1. An appellate court applies an unlimited standard of review when examining whether a
statute creates an unconstitutional classification.

2. Courts must resolve doubts regarding a statute's constitutionality in favor of its validity
and not only have the authority, but also the duty, to construe a statute in such a manner
that it is constitutional if this can be done within the apparent intent of the legislature in
passing the statute.

3. When the constitutionality of a statute is challenged on the basis of an equal protection
violation, the first step of analysis is to determine the nature of the legislative
classifications and examine whether these classifications result in disparate treatment of
arguably indistinguishable classes of individuals. Only if there is differing treatment of
similarly situated individuals is the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution implicated. After determining the nature of the legislative
classifications, a court examines the rights which are affected by the classifications. The
nature of the rights dictates the level of scrutiny to be applied–either strict scrutiny,
intermediate scrutiny, or the deferential scrutiny of the rational basis test. The final step of
the analysis requires determining whether the relationship between the classifications and
the object desired to be obtained withstands the applicable level of scrutiny.

4. An individual complaining of an equal protection violation has the burden to demonstrate
that he or she is similarly situated to other individuals who are being treated differently.
Because the complaining party has this burden and also because a court presumes a statute
is constitutional, the parameters of a court's consideration of whether individuals are
similarly situated is set by the distinctions argued by the complaining party.

Casey J. Cotton, of Roger L. Falk & Associates, P.A., of Wichita, argued
the cause and was on the brief
for appellant.

Julie A. Koon, assistant district attorney, argued the cause, and Nola
Tedesco Foulston, district attorney,
and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Abel Salas raises a very narrow issue of whether K.S.A. 21-2512 violates
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
because it allows postconviction DNA testing of evidence if a defendant is convicted of
premeditated first-degree murder but does not allow such testing if the defendant is convicted of
intentional second-degree murder. To establish the equal protection violation, Salas argues that
the class of individuals who commit first-degree murder is indistinguishable from the class of
individuals who commit intentional second-degree murder because, as he phrases his argument,
the "two crimes involved here are substantially similar as to the necessary elements." We reject
this argument; comparing the elements as Salas invites us to do reveals the crimes are
distinguishable.

The issue reaches this court after Salas filed a motion for DNA testing under K.S.A.
21-2512. The motion was filed approximately 5 years after a jury convicted Salas of intentional
second-degree murder and criminal possession of a firearm related to the death of Tracie Simon,
who was found lying in a pool of blood on the floor of a hotel room. On appeal, the Court of
Appeals affirmed both the conviction of intentional second-degree murder, which had been
submitted to the jury as a lesser included offense of premeditated first-degree murder, and the
conviction of criminal possession of a firearm, which had been charged in the complaint. The
Court of Appeals also affirmed Salas' sentence of 255 month's imprisonment. State v.
Salas, No.
86,422, unpublished opinion filed May 3, 2002, rev. denied September 24, 2002.

In Salas' motion, he requested DNA testing of several items of evidence collected from the
scene of Simon's murder, including gloves, a hat, burnt cigarettes, swabs from beer bottles, swabs
from beer cans, and swabs from a smudge on a window. Salas alleged in his motion that the
evidence had either not been subjected to DNA testing, or retesting with new DNA techniques
would provide "a reasonable likelihood of more accurate and probative results."

At the hearing on the motion, Salas recognized that K.S.A. 21-2512, the only statute
allowing postconviction DNA testing, does not allow testing if a defendant has been convicted of
intentional second-degree murder. In relevant part, K.S.A. 21-2512 provides:

"(a) Notwithstanding any other provision of law, a person in state custody, at any
time
after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as
defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the
judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material . . .
."

Hence, under the statute, postconviction testing is allowed only if a defendant was convicted
of
premeditated first-degree murder under K.S.A. 21-3401(a), felony murder under K.S.A.
21-3401(b), or rape under K.S.A. 21-3502.

Despite there not being any statutory authorization for DNA testing in Salas' case, he
argued the coverage of the statute must be expanded to avoid an unconstitutional result; he
argued K.S.A. 21-2512, as written, violates the Equal Protection Clause. To support his argument
below, Salas drew the district court's attention to State v. Denney, 278 Kan. 643, 101
P.3d 1257
(2004).

In Denney, this court concluded that aggravated criminal sodomy, which was
not included
in K.S.A. 21-2512 as a crime for which DNA testing could be conducted, was indistinguishable
from rape under the facts in that case. The court reasoned that rape could consist of something
less than voluntary consent to penetration of the female sex organ by the male sex organ, while
aggravated criminal sodomy could consist of something less than voluntary consent to penetration
of another female bodily orifice by the male sex organ. Hence, at least for purposes of determining
if DNA testing would be allowed, under the facts of the case, the two crimes were so
indistinguishable that K.S.A. 21-2512 violated equal protection. To remedy the violation, the
Denney court extended the statute's coverage to include testing for aggravated
criminal sodomy.

The district court found Denney distinguishable from the present case and
rejected Salas'
equal protection argument, concluding that there is much more of a "difference between
first-degree murder and second-degree murder than [between] the two sex offenses that were
involved
in the Denney case." The court further expressed concern that if DNA testing for
second-degree
murder is permitted under current law, a door would open to requests for DNA testing involving
other offenses not specifically identified in K.S.A. 21-2512. "[W]e're going to have to go to
voluntary [manslaughter], then how about involuntary [manslaughter], and maybe we should get
into the nonhomicide cases where the stakes are very high and the sentences are very long."
Ultimately, the court found no equal protection violation.

On appeal, Salas again concedes that K.S.A. 21-2512 does not provide
him a right to
DNA testing and focuses on an equal protection argument by comparing the similarity between
premeditated first-degree murder and intentional second-degree murder.

As we consider this argument, our standard of review is unlimited as it is anytime an
appellate court examines whether a statute creates an unconstitutional classification. Hall v.
Dillon Companies, Inc., 286 Kan. 777, Syl. ¶ 10, 189 P.3d 508 (2008); see
State v. Storey, 286
Kan. 7, 9-10, 179 P.3d 1137 (2008) Although our review is unlimited, it is based on a
presumption that a statute is constitutional. Hence, courts must resolve doubts regarding a
statute's constitutionality in favor of its validity. In fact, "[t]his court not only has the authority,
but also the duty, to construe a statute in such a manner that it is constitutional if this can be done
within the apparent intent of the legislature in passing the statute." State v. Martinez,
268 Kan. 21,
Syl. ¶ 2, 988 P.2d 735 (1999); see State v. Brown, 280 Kan. 898, 899, 127
P.3d 257 (2006); State
v. Van Hoet, 277 Kan. 815, 829, 89 P.3d 606 (2004).

When the constitutionality of a statute is challenged on the basis of an equal protection
violation, the first step of analysis is to determine the nature of the legislative classifications and
whether the classifications result in arguably indistinguishable classes of individuals being treated
differently. Only if there is differing treatment of similarly situated individuals is the Equal
Protection Clause implicated. See Hodges v. Johnson, 288 Kan. 56, 72, 199 P.3d
1251 (2009);
Denney, 278 Kan. at 652; see also Cleburne v. Cleburne Living Center,
Inc., 473 U.S. 432, 439,
87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) (guiding principle of equal protection analysis is that
similarly situated individuals should be treated alike). After determining the nature of the
legislative classifications, a court examines the rights which are affected by the classifications. The
nature of the rights dictates the level of scrutiny to be applied–either strict scrutiny,
intermediate
scrutiny, or the deferential scrutiny of the rational basis test. The final step of the analysis requires
determining whether the relationship between the classifications and the object desired to be
obtained withstands the applicable level of scrutiny. State v. Limon, 280 Kan. 275,
283-84, 122
P.3d 22 (2005); see Denney, 278 Kan. at 651, 654 (applying rational basis test); see
also District
Attorney's Office for Third Judicial Dist. v. Osborne, ___ U.S. ___, ___ L. Ed. 2d ___, ___
S.
Ct. ___ (2009 WL 1685601, at *11, filed June 18, 2009) (considering due process attack on
Alaska's postconviction DNA testing statute; noting that "[a] criminal defendant proved guilty
after a fair trial does not have the same liberty interests as a free man" and consequently a State
"has more flexibility in deciding what procedures are needed in the context of postconviction
relief.").

In regard to the first step of the analysis, the United States Supreme Court has held that an
individual complaining of an equal protection violation has the burden to demonstrate that he or
she is "similarly situated" to other individuals who are being treated differently. Because the
complaining party has this burden and also because a court presumes a statute is constitutional,
the parameters of a court's consideration of whether individuals are similarly situated is set by the
distinctions argued by the complaining party. See Heller v. Doe, 509 U.S. 312,
319-21, 125 L.
Ed. 2d 257, 113 S. Ct. 2637 (1993); Congregation Kol Ami v. Abington Township,
309 F.3d 120,
137 (3d Cir. 2002) (citing Cleburne, 473 U.S. at 447-501); Hodges, 228
Kan. at 72-73; Limon,
280 Kan. at 283-84.

Here, Salas has set narrow parameters, arguing "that second degree murder and first
degree murder were substantially similar offenses." Building his argument, he further limits the
comparison by stating that the two crimes are "substantially similar" because

"the only difference between the two offenses is premeditation. For Murder in the First
Degree,
the State must prove premeditation. Both offenses require the intentional killing of another
human being. Therefore, the two crimes involved here are substantially similar as to the
necessary elements, and are arguably indistinguishable on that basis."

Salas again advances Denney, 278 Kan. 643, for support of this argument.

As previously noted, in Denney the classifications at issue were distinguished
by whether
the individual was convicted of rape or aggravated criminal sodomy. In concluding the
classifications were "arguably indistinguishable" we stated:

"In short, rape can consist of something less than voluntary consent to penetration
of the
female sex organ by the male sex organ, while aggravated criminal sodomy can consist of
something less than voluntary consent to penetration of another female bodily orifice by the male
sex organ. Here, Denney clearly committed the latter: penetrating his victims' anuses with his
male sex organ. Accordingly, we hold that Denney, convicted of aggravated criminal sodomy
under such circumstances, is arguably indistinguishable from those people who are convicted of
rape [using] the male sex organ." 278 Kan. at 653-54.

Simply put, both crimes in Denney involved something less than voluntary
consent to penetration
of a female bodily orifice by the male sex organ. Hence, the required elements were arguably
indistinguishable.

Salas argues that, in a similar fashion, premeditated first-degree murder and intentional
second-degree murder are "substantially similar as to the necessary elements, and are arguably
indistinguishable on that basis." As the State notes, however, the identity of elements that existed
in Denney does not exist in this case. Rather, the crimes of premeditated first-degree
murder and
intentional second-degree murder are distinguished by the premeditation element.

Recently, we stated: "Comparing premeditated first-degree murder and intentional
second-degree murder leads to the conclusion these crimes are clearly not identical. . .
. The
difference between premeditated first-degree murder and intentional second-degree murder is that
premeditated first-degree murder includes the element of premeditation. K.S.A. 21-3401(a);
K.S.A. 21-3402(a)." (Emphasis added.) State v. Warledo, 286 Kan. 927, 951, 190
P.3d 937
(2008) (applying Kansas' identical offense sentencing doctrine). Indeed, this court has
characterized premeditation as "the defining element of premeditated first-degree murder in
K.S.A. 21-3401(a)." State v. Cook, 286 Kan. 1098, 1101, 191 P.3d 294 (2008). In
contrast,
intentional second-degree murder has no requirement that the defendant think the matter over
beforehand. See State v. Cosby, 285 Kan. 230, 239, 169 P.3d 1128 (2007) (in
premeditated first-degree murder case, "[t]he prosecutor then repeated the correct definition of
premeditation as
'thinking the matter over beforehand'"); PIK Crim. 3d 56.04(b) (2004 Supp.) ("Premeditation
means to have thought the matter over beforehand, in other words, to have formed the design or
intent to kill before the act.").

Hence, we reject Salas' argument that premeditated first-degree murder and intentional
second-degree murder are substantially similar as to the necessary elements and are arguably
indistinguishable on that basis. Because Salas has made no other argument, he has failed to meet
his burden of establishing that he is similarly situated to those who have a right to DNA testing
under K.S.A. 21-2512, and his equal protection argument fails.